ANTHONY BOONE v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6507-04T36507-04T3

ANTHONY BOONE #231911,

Defendant-Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Plaintiff-Respondent.

_______________________________________

 

Submitted August 30, 2006 - Decided September 6, 2006

Before Judges Yannotti and Seltzer.

On appeal from a Final Agency Decision of the Department of Corrections.

Anthony Boone, appellant pro se.

Zulima V. Farber, Attorney General of New Jersey, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Kimberly A. Sked, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Anthony Boone (Boone) is an inmate in the State correctional system, presently serving sentences imposed after he was convicted of murder, aggravated assault, receiving stolen property, possession of a controlled dangerous substance and unlawful possession of a weapon. Boone appeals from a final determination of the Department of Corrections (Department) finding that Boone refused to follow an order of a staff member and imposing disciplinary sanctions. We affirm.

On May 31, 2005, Boone was incarcerated at the East Jersey State Prison in Rahway. At around 7:25 a.m., Boone was moved from his cell to the prison rotunda where he was informed that he was going to be transferred to South Woods State Prison in Bridgeton. According to the correction officers, Boone refused to go. Boone reportedly said that he would only transfer to New Jersey State Prison in Trenton. Senior Correction Officer Walker (Walker) reported that he ordered Boone to proceed with the transfer but Boone again refused. Boone's transfer was not effected and he was placed in pre-hearing detention.

On June 1, 2005, Boone was served with a disciplinary report, which stated that he had refused the transfer to South Woods prison. In the ensuing investigation, Boone said that because he was not permitted to "double lock," he could not transfer to South Woods. The investigating officer found, however, that the custody staff reports provided sufficient evidence to refer the charge to a hearing officer for adjudication.

The hearing took place on June 3, 2005 before hearing officer Gary Sheppard. Boone pled not guilty and his request for assistance from counsel substitute was granted. In support of the charge, the Department submitted Walker's disciplinary report and his operation report. Those documents stated that Boone refused an order to transfer to South Woods prison. In response to the charges, Boone did not identify any witnesses, nor did he present any documentary evidence.

The adjudication form noted that, on Boone's behalf, counsel substitute argued that the incident was "a miscommunication." Boone "simply stated that he didn't want" to make the transfer. Counsel substitute asserted, "[Boone] has a right to submit comments about a transfer. It is a visit hardship." According to the adjudication form, Boone was offered the opportunity to confront adverse witnesses but he declined. Counsel substitute signed the form indicating that it accurately reflected what occurred at the hearing.

The hearing officer found Boone guilty of the charge. He relied upon the staff reports which stated that Boone was ordered to proceed with the transfer and he had refused to comply. The hearing officer also noted that Boone has no housing restrictions that would preclude his transfer to South Woods. The hearing officer recommended the following sanctions: fifteen days detention, with credit for time in pre-hearing detention; a loss of 60 days of commutation credits; and 90 days of administrative segregation. The hearing officer stated the following concerning the sanctions:

To deter refusals to move. The inmate was given a clear, reasonable order [and] refused. He has no housing restrictions [and his] options do not include outright refusal. If [Boone] had a problem [with] the order he should have complied first, [and] then addressed [his] concerns [with] administrative staff.

An administrative appeal was filed on Boone's behalf by counsel substitute. He asserted that Boone did not refuse the order to transfer but "simply stated" to Walker that he had not requested a transfer and asked to speak with a supervisor. Counsel substitute stated that the procedures for non-emergency transfers of inmates had not been followed, specifically Boone had not been informed by the Institutional Classification Committee that it had accepted a recommendation from a hearing officer for transfer.

Counsel substitute further argued that the hearing officer's finding of guilt was not supported by substantial evidence. He said that Boone had asked for a transfer to New Jersey State Prison because his mother could visit him there. He added that Boone merely asserted that he did not want to be transferred and Walker had misconstrued this statement to mean that Boone was refusing to comply with his order.

On June 6, 2005, Associate Administrator Power rejected Boone's appeal and upheld the decision of the hearing officer, noting that the decision was based on substantial evidence. This appeal followed.

Boone raises the following points or our consideration: 1) the decision of the hearing officer was not based on substantial evidence; 2) the hearing officer had a conflict of interest and should have recused himself because Boone filed a civil action against the Department and named the hearing officer as a defendant; 3) the hearing officer's decision was based on retaliation and bias stemming from the alleged conflict of interest; and 4) the transfer to South Woods did not comply with the applicable provisions of the administrative code and otherwise denied Boone due process.

The scope of our review in an appeal from a final administrative decision is narrow. We will not reverse a determination of an administrative agency unless the decision is shown to be arbitrary, capricious or unsupported by substantial credible evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). When reviewing the Department's decision in a prisoner disciplinary matter, we consider whether there is substantial evidence that the inmate has committed the prohibited act and whether, in making its decision, the Department followed the regulations it had adopted to afford inmates procedural due process in disciplinary matters. McDonald v. Pinchak, 139 N.J. 188, 194-95 (1995); Jacobs v. Stephens, 139 N.J. 212, 220-22 (1995).

We have carefully considered Boone's contentions in light of the record before us on appeal. We are satisfied that there is substantial evidence to support the Department's finding that Boone committed the prohibited act of refusing an order of a staff member. The hearing officer relied upon Walker's report, which stated that Boone had been given a clear order to proceed with his transfer to South Woods prison and he refused. Although Boone insists that he did not refuse the order, and contends that he merely stated that he did not want to transfer to South Woods, the correction officers on the scene and the hearing officer could reasonably conclude that Boone's statements constituted a refusal to comply with an order to proceed with the transfer. We find no merit in Boone's assertion that he was denied confrontation of adverse witnesses. The adjudication form states that Boone was afforded an opportunity to confront the officers whose statements provided the basis for the charge. The form also states that Boone declined the opportunity for confrontation and Boone's counsel substitute signed the form indicating that it accurately reflected what had occurred at the hearing. Thus, Boone's contention has no support in the record.

Boone also argues that the hearing officer should have recused himself from the matter because Boone purportedly has named him as a defendant in a lawsuit. According to the adjudication report, this issue was not raised at the hearing. The complaint is not in the record and we have no way of knowing whether the hearing officer was in fact named as a defendant or the nature of the claims that may have been asserted against him.

We recognize that in a disciplinary matter, an inmate is entitled to an impartial tribunal. Avant v. Clifford, 67 N.J. 496, 525-28 (1975); N.J.A.C. 10A:4-8.3. However, the record fails to establish whether, in fact, the hearing officer had a conflict of interest which required that he step aside. The record also does not support Boone's claim that the hearing officer's decision was in retaliation for having been named as a defendant in Boone's lawsuit.

Affirmed.

 

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A-6507-04T3

September 6, 2006